C. J. Craig, Bodies in Motion: *This is a very early draft: Please do not cite without permission* 2014 Bodies in Motion: Contemplating Choreography and Copyright Law Carys J. Craig* Extended Abstract: The viral success of “Gangnam Style” stirred up discussion in the blogosphere about copyright in the musical work, which was reproduced and disseminated by millions worldwide. While many queried the lawfulness of those amateur reaction and parody videos that reproduced the musical track, or applauded Psy for his decision to allow their proliferation, there was relative silence about the lawfulness of mimicking Psy’s distinctive dance moves. The notion that the public “flash mobs” or “dance bombers” circling one hand over their heads while maniacally hopping sideways ought first to have obtained the permission of Psy (or, more likely, his choreographer) could seem absurd. It would, however, have been sound legal advice. The fact that choreographic works attract copyright protection is not controversial in itself. Yet, almost every core element of copyright doctrine sits uneasily with the practices and processes of choreography. What is original expression in the context of a dance tradition, where familiar steps and routines are repeated and recombined against the backdrop of tradition? In what circumstances should one person’s copyright prevent another from participating in a cultural phenomenon by moving her body in a certain way? What is choreographic authorship as distinguished from performance, and in what circumstances might the performer become the author? What is “the work,” and how is it identified, when dance is by nature dynamic and ephemeral? What is fixation, and why does it matter, in a performance-based medium where ideas find materiality in the bodies and minds of dancers? The conceptual difficulties encountered in answering these and other questions illuminate the poverty of the legal constructs we employ to understand creativity in the world of dance, and beyond. The purpose of this paper, then, is not only to explore the complexities of applying copyright to choreography, but to employ choreography as a conceptual site within which to critically assess copyright’s central assumptions about the processes and products of authorship. As an area of cultural creativity still relatively untouched by the force and effect of copyright law and litigation, the realm of dance may also operate as an example of what collaborative, cumulative creativity can look like when the legal norms do not appear to apply either in practice or in principle. 1 C. J. Craig, Bodies in Motion: *This is a very early draft: Please do not cite without permission* 2014 “Dance exists at a perpetual vanishing point. At the moment of its creation it is gone.… No other art is so hard to catch, so impossible to hold.”1 I. INTRODUCTION In summer of 2012, South Korean pop musician, Psy, released his music single ‘Gangnam Style.’ By December of the same year, his music video became the first one ever to attract one billion You Tube views—a number that has now more than doubled.2 The popularity of the video was due not only to the track’s catchy beat, but also to Psy’s “amusing dance moves,”3 including the famous horse-riding dance, which became an instant classic, recognized and replicated around the globe. It been performed by the rich and famous, from Presidents to sports stars;4 it has been used for political causes, from Greenpeace to Guantanamo;5 and it has spawned thousands of user-generated reaction and parody videos, featuring everything from flash mobs in city centers to solitary individuals dance crashing school cafeterias.6 As the craze spread, many in the music industry wondered whether we were witnessing the future of music marketing success in the digital world. 1 Marcia B. Seigel, At the Vanishing Point: A Critic Looks at Dance (New York: Saturday Review Press, 1972) at 1. 2 See http://en.wikipedia.org/wiki/Gangnam_Style (visited on 21 July 2014). 3 Ibid. 4 The list of dignitaries who have claimed to have performed the dance includes Barrack Obama, David Cameron, and United Nations Secretary-General Ban Ki Moon (who reportedly hailed it as a "force for world peace": see “Gangnam Style Gets UN Stamp of Approval, Sydney Morning Herald, 10 October 2012, available at: http://www.smh.com.au/digital-life/digital-life-news/gangnam-style-gets-un-stamp-of-approval- 20121010-27cbq.html). Sports stars who have performed the dance include boxer Manny Pacquiao and tennis player Novak Djokovic. See ibid. 5 Greenpeace posted a parody version filmed on board its Rainbow Warrior ship, available at: http://www.greenpeace.org/international/en/news/Blogs/makingwaves/gangnam-greenpeace- style/blog/43471/?entryid=43471. Guantanamo Bay inmate, Muhammad Rahim al Afghani reportedly cited the Gangnam Style video as an example of his ability to learn about pop culture trends despite his confinement; he offered to do the dance provided that his shackles were removed. (See Ben Fox "A lesson in pop culture via Guantanamo", Associated Press, 13 December 2012: http://bigstory.ap.org/article/lesson- pop-culture-guantanamo). 6 By way of example, Noam Chomsky and other notable MIT professors in the MIT Parody version, available at: https://www.youtube.com/watch?v=lJtHNEDnrnY. Student David Kim also posted a version filmed on my home campus of York University, Toronto: https://www.youtube.com/watch?v=FFVsrhETxkg&feature=youtu.be NASA Astronauts at Mission Control Centre in Houston Texas also created another popular spoof version: see http://www.nbcnews.com/id/50230748/ns/technology_and_science-space/#.U9fmrG3LLuo. 2 C. J. Craig, Bodies in Motion: *This is a very early draft: Please do not cite without permission* 2014 Rather than exercising his exclusive right to control reproduction and public performance, as protected around the world by copyright law, Psy was able to rake in an estimated $8 million US dollars through advertisements appearing on You Tube in connection with any video identified as having “Gangnam Style” in its content.7 Meanwhile, it is reported that Lee Ju-sun, the relatively little known choreographer behind the famous dance moves, was paid a “minuscule” percentage of the money in a lump sum by Psy when Ju-Sun began teaching him the dance—and had no legal basis on which to claim more (although Psy reportedly paid him a cash ‘bonus’ upon the unanticipated success of the video).8 The viral spread of Gangnam Style stirred up discussion in the intellectual property blogosphere about the role and relevance of copyright in the musical work and sound recording. Many queried the lawfulness of those amateur dance videos that reproduced the musical track, while others applauded Psy and his music label for their canny choice to maximize rather than restrict dissemination as a key to ultimate economic success in the internet age.9 There was, in stark contrast, virtual silence on the subject of Psy’s distinctive dance moves. The notion that the public “flash mobs” or “dance bombers,” circling one hand over their heads while maniacally hopping sideways, ought first to have obtained the permission of Psy (never mind Ju-sun), likely did not cross the minds of most. Strange though it may seem, however, it would have been sound legal advice. Choreographers have long been accustomed to existing at the blurry margins of the copyright system. As Barbara Singer wrote in 1984, the law “has been content to treat dance as the black sheep of the arts.”10 It was not until 1976 in the United States, and arguably as late as 1988 in Canada, when choreographers’ original works were explicitly granted the protection of copyright law in their own right, without having to squeeze into another recognized category of expressive work. Notwithstanding the recent proximity of 7 See Youkyung Lee and Ryan Nakashima, “Psy's Riches From 'Gangnam Style' Not Made At Home”, Associated Press, 5 December 2012, available at: http://bigstory.ap.org/article/cashing-gangnam-styles-youtube-fame. 8 Park Si-soo, “What about the Choreographer of Gangnam Style?”, Korea Times, 6 February 2014. Available at: http://www.koreatimesus.com/?p=6942 . 9 See, e.g. Emma Lunn, “How Psy Made £16 Million from his Youtube success”, Yahoo Finance, 11 June 2013 available at: https://uk.finance.yahoo.com/news/how-psy-made-16m-from-youtube-success- 155917055.html 10 Barbara Singer, “In Search of Adequate Protection for Choreographic Works: Legislative and Judicial Alternatives vs. The Custom of the Dance Community”, 38 U. of Miami L. Rev. 287 (1984) at 288. 3 C. J. Craig, Bodies in Motion: *This is a very early draft: Please do not cite without permission* 2014 such statutory developments, the fact that choreographic works attract copyright protection is surprisingly uncontroversial. Choreography is widely understood to be “the art of creating and arranging dances or ballets.”11 As a creative and artistic endeavor, the protection of choreographic works by copyright thus seems a natural fit for a body of law concerned with the “progress of the arts”12 and the encouragement of “works of the arts and intellect.”13 As such, the vast majority of the scholarly literature concerned with the copyrightability of choreography is focused on the failings and flaws of a system that offers inadequate protection to choreographic works and their authors.14 The widely held view— and one that finds support in the story of Lee Ju-Sun—is that choreographers, as a category of creators, are disproportionately disadvantaged by many of the core definitions and preconditions of copyright. This view is certainly not without foundation; indeed, it is supported by much of the discussion that follows. As we will see, almost every core element of copyright doctrine, from determining originality to establishing infringement, sits uneasily with the practices and processes of choreography.